The Pandemic and State Initiatives to Combat It

February 23, 2021 by David Toscano

Most everyone has grown tired of the pandemic; it has caused great disruption in our lives, and terrible pain and suffering for families who have either lost a loved one, have had to endure serious illness, or whose economic livelihood has been adversely affected. While recent reports from the University of Virginia suggest an uptick of local cases, the good news is that vaccinations are on the rise (a recent report suggests that over 30 percent locally have received at least one shot), and more vaccine is arriving daily. When you have the chance to get a shot, do it!

Why States Matter

Since the onset of the pandemic a year ago, most of the action in combating the pandemic has centered on the states if only because President Trump said early in the crisis that he would “leave it to the Governors.” If you ever wanted an argument to show “why states matter,” this was it. State Governors took the lead by issuing a series of executive orders designed to slow the spread of the virus. Governor Northam has issued many such orders since last March. Last week, he extended Executive Order 72, which retains the 10-person limit on social gatherings and the requirement to wear masks in public places through February 28.

States with the smallest winter coronavirus waves

Over the last year, we have witnessed a patchwork of responses throughout the nation. Different states and their governors have emphasized different approaches at different times. And we are seeing the same in their approaches to vaccination.

With the development of the vaccines and a new and engaged President, the federal government has stepped in to provide some level of coordination that was largely lacking with Trump. Nonetheless, the administration of the vaccination process has largely fallen on the states, and they have been beset by a series of challenges from the beginning. The nation’s recent weather has not helped, but there is evidence that production is ramping up. The challenge now is to deliver the supply and have the trained personnel ready to administer the shots.

Reporting on state responses can be found in many places, and today, I recommend three. First, Politico has just initiated a new series to explore the best ideas emerging from the 50 states to deal with the pandemic. Second, William Galston and Elaine Kamark from Brookings just published a piece looking at state metrics for vaccine distribution. Their study ranked Virginia 6th of all the states in vaccine efficiency, defined as the percentage of doses received that have been administered, and 12th in terms of the number of persons who had received at least one shot. This ranking is consistent with the February 19 report by Becker’s Hospital Review, a source considered among the most reliable in the reporting of these data. These statistics can and do vary by the day, so the commonwealth would do well to keep pushing.

Among the best performers were West Virginia and North Dakota, both of which worked with their independent pharmacies to get vaccines into nursing homes. Connecticut ranked second in the Brookings study, and benefited from being one of the first states to create mass vaccination sites.

And finally, The New York Times recently reported that New Mexico had administered two shots to 9.3 percent of its population, 2nd highest of all the states (Virginia lagged behind other states in this metric). Many attribute this high rating to the state’s early creation of a statewide appointment website and its efficiency in transferring unused doses to other facilities at the end of each day.

Vaccination will eventually get the virus under control. In the meantime, another measure of a state’s success can be found in how successful they have been in keeping their death tolls low. Again, Virginia has fared well in this measure. The Politico report argues that “Virginia’s death rate began to significantly outperform most other states starting in October,” and suggests that the commonwealth’s mask requirements has a lot to do with it.

While this is no reason to relax social distancing or other prevention measures, it suggests that the commonwealth may emerge from the pandemic more quickly than some other places.

Getting Vaccinated

While we certainly can learn from other states, many are justifiably focused on getting vaccinated. Here are some ways to do so. Virginia just launched a pre-registration website and call center for sign-up, vaccinate.virginia.gov. You can access it here. Anyone can register, but only people in Phases 1a and 1b (ages 65+ and ages 16-64 with underlying health conditions) are currently being vaccinated. You should receive confirmation that your registration has been received, but if not, you can call the Virginia Department of Health’s hotline at 877-VAX-IN-VA (877-829-4682). If the pandemic has taught us anything, it is patience, and you may have to wait a little time to get through.

Vaccine doses are also being administered through certain pharmacies, including some CVS and Walgreens stores. There have been some challenges getting registered for these, but CVS maintains a site where people over 65 can check as additional appointments become available. As of this writing, all doses at the CVS locations were “fully booked” but hopefully more options will become available as more dosages are delivered.

You can stay on top of the Virginia’s COVID initiatives here. For local information and a COVID dashboard, see info from our Blue Ridge Health Department. The state also maintains a vaccine dashboard that provides data on the number of vaccines distributed to health care providers and the number of doses given, and an interactive map with information about the vaccination phases of different health districts.

We Will Beat This Thing

The way we will beat this thing is by taking precautions, wearing a mask when leaving your residence, maintaining physical distance from others, washing hands frequently, and eventually getting vaccinated. We will also do it by learning from other states. Determining what works has never been more important and watching the efforts in other states will help deliver vaccines faster and save more lives.

More information about the varied responses of the states to the pandemic, especially in its early stages, can be found in my forthcoming book, Fighting Gridlock: How States Shape the Nation and Our Lives (foreword by Senator Mark R. Warner), to be published late summer 2021 by the University of Virginia Press.

States and Judicial Selection

January 29, 2021 by David Toscano

For those of you interested in why states are important, you might read Pennsylvania Could Become a National Outlier in How it Elects Appellate Judges by former Virginia reporter Marie Albiges.

One of the reasons why states matter has to do with judicial selection. We are somewhat unique in Virginia in that our judges are chosen in the legislature, not by direct election of the people. In contrast, most states choose judges by popular elections. These can be quite costly and divisive. There are many states where judges do not identify with a party as they seek election. Nonetheless, the public easily can identify them as either conservative, liberal, or moderate, and make their choices accordingly. While the Virginia system has generated an Appellate and Supreme Court bench that is generally conservative, our selection process avoids costly elections where people choose not necessarily on whether a person is capable of being a good judge but instead upon how a judge is sold to the electorate.

We are now see seeing a tendency emerging in states, mostly red ones, where legislatures are trying to gain more control of the judiciary in order to stock it with conservative judges. This article shows how that is occurring in Pennsylvania , but we can expect it all over the country.

Virginia Democrats are trying to increase the number of judges on Virginia’s Court of Appeals, arguing that we need more judges so that justice may be served.

You can read more about judicial selection in the states in my upcoming book, Fighting Political Gridlock: How States Shape Our Nation and Our Lives, to be published late this summer by University of Virginia Press.

Fasten Your Seatbelts: We’re in for a Bumpy Electoral Ride

September 14, 2020 by David Toscano

Many of the nation’s theme parks have been closed during the pandemic. But that isn’t stopping Americans from being forced to take a roller coaster ride in the form of the 2020 elections. The stakes are high, not just for who is elected President, but for who will control statehouses across the nation. The results may be in dispute for weeks following election day, and will undoubtedly determine the direction of the country for the next decade at least. [Read more…]

States of Emergency: Governors and the Public Wage War on COVID-19

March 29, 2020 by David Toscano

On December 31, 2019, a brief release appeared on the website of the World Health Organization (WHO). Captioned “Pneumonia of unknown cause – China,” it briefly reported about a number of cases of pneumonia of unknown etiology (unknown cause) detected in the city of Wuhan, a port city of 11 million inhabitants. Few in this country took note, with the notable exception of scientific specialists in the areas of infectious diseases and public health.

Halfway around the world, Governors and state legislators were preparing for their annual legislative sessions. Virginia was among the first of the states to convene, and they did so on January 8. Major changes were contemplated for the state, since the Democrats had just taken control of the legislature and held the Governor’s office as well. On the other side of the country, Washington state convened its own session on January 13. Both states were making history as each elected their first women Speakers in history — Eileen Filler-Corn in Virginia and Laurie Jinkins in Washington. And Democratic Governors Jay Inslee of Washington and Ralph Northam were optimistic about making their marks on their states in light of a strong economy and Democratic majorities. Within two months, they would join other Governors across the nation, as they confronted the greatest challenges of their administrations, and their states would be plunged into the most serious crisis since the Great Depression. [Read more…]

Sanctuaries with Guns?

December 20, 2019 by David Toscano

Turning the Rule of Law Upside Down

The Tazewell County, Virginia, Board of Supervisors recently jumped aboard the fast-moving “Second Amendment sanctuaries” train. In doing so, they embraced positions fundamentally at odds with state and federal constitutional law. Passing resolutions opposing certain laws or protesting governmental action is perfectly consistent with our traditions as a democracy, and no one should oppose the rights of citizens and their representatives to speak their minds. But Tazewell, and a number of other localities across Virginia, want to do much more. As Eric Young, an attorney and the county’s Administrator, put it, “our position is that Article I, Section 13, of the Constitution of Virginia reserves the right to ‘order’ militia to the localities; counties, not the state, determine what types of arms may be carried in their territory and by whom. So, we are ‘ordering’ the militia by making sure everyone can own a weapon.” Other counties are announcing different schemes if gun safety laws are enacted: for example, the Culpeper County sheriff pledged to deputize “thousands of citizens” so they can own firearms.

Conservatives have railed for years against so-called “sanctuary jurisdictions,” criticizing localities that refuse to cooperate with federal immigration policies they deem heartless and ineffective. In the past year, however, some conservative lawmakers have taken a page from the progressive playbook, employing sanctuary imagery in opposition to gun safety legislation they deem to be an unconstitutional restriction of their rights under the Second Amendment.

The two approaches are classic cases of false equivalency. Jurisdictions that proclaim themselves sanctuaries for immigrants do not seek to violate the law; they simply refuse to engage local law enforcement in supporting actions that are federal responsibilities. They do not block the law, but simply insist that it should be enforced by those who have the responsibility to do so. For some proponents of so-called gun sanctuaries, however, the goal is to prevent enforcement of state law that the jurisdiction (not a court) deems unconstitutional.

After Democrats won majorities in both chambers of the Virginia General Assembly, fears of stricter gun regulations have inspired a rise in Second Amendment sanctuary activity in Virginia. Sanctuary efforts are driven mainly by the Virginia Citizens Defense League, a gun rights group to the right of the NRA. My office’s analysis of recent news accounts indicates that before November 5, just one county had passed a resolution; since the election, at least 80 localities (counties, cities, or towns) have passed some form of sanctuary resolution, and as many as 34 more are considering their adoption.

A Rebellion Emerges

Second Amendment sanctuaries exploded onto the national scene in early 2019 after newly-elected Democratic Gov. J.B. Pritzker pledged to pass gun safety measures in Illinois. Within months, 64 of the state’s 102 counties passed sanctuary resolutions. After New Mexico expanded background checks in 2019, 30 of 33 counties declared themselves Second Amendment sanctuaries. Similar actions have either been taken or are under consideration in Colorado, Oregon, Washington state, and now Virginia.

In some cases, these resolutions simply register an objection to any infringement on gun owners’ rights. But some Virginia localities have gone further, indicating that they will not enforce state law that they deem unconstitutional. Some proponents have even resurrected words like “nullification” and “interposition,” terms first used extensively by Southern secessionists prior to the Civil War, and more recently during the “massive resistance” to federal laws requiring desegregation in the 1960s. They argue that constitutional officers in Virginia, such as Commonwealth’s Attorneys and Sheriffs, have discretion not to enforce laws that they consider “unconstitutional.” In Virginia, there has always existed some debate about the independence of these officers, but, while they are creations of the Constitution, their duties are nonetheless “prescribed by general law or special act.” In short, sheriffs may be “constitutional officers,” but they are not “constitutional interpreters.”

Flashpoints in the Culture Wars

The emergence of these sanctuaries demonstrates a growing rift in our nation. For residents in many rural areas of our country, guns are viewed as part of their way of life, one some fear that they will lose due to national and state changes. Most gun owners are law-abiding citizens, and any effort to limit anyone’s access to firearms is perceived as a direct attack on many things that they hold dear. During the Obama years, the manufacture and purchase of firearms increased in dramatic numbers in part due to unfounded fears that the government would try to take away guns. Voting to declare themselves “sanctuaries” is a way they can reassert some control over events that they feel are putting them at risk. For these communities, it matters little that reasonable gun safety proposals have largely passed constitutional muster, or that most proponents of these measures have no intention of taking anyone’s guns away unless it can be shown, in a court of law, that they are a danger to themselves or others.

At the same time, the general public is increasingly supportive of certain gun safety measures. An April 2018 poll found that 85 percent of registered voters support laws that would “allow the police to take guns away from people who have been found by a judge to be a danger to themselves or others” (71 percent “strongly supported”). These measures, called Emergency Risk Protection Orders (ERPO), or “red flag” laws, create judicial procedures by which persons with serious mental health challenges deemed a threat to themselves or others can have their weapons removed until their situation is resolved; courts can be engaged to protect the rights of the accused. And a March 2019 Quinnipiac poll reported that 93 percent of American voters support a bill that would require “background checks for all gun buyers.”

The energy behind support of gun measures like “red flag” laws is generated by concern for mass shootings, which are statistically rare but dramatic in their public impact, and the increasing numbers of gun-related suicides, which impact families and communities in quiet but devastating ways. On the latter front, there is a certain irony that some communities which have embraced Second Amendment sanctuary status also have higher gun suicide rates than other communities in their state. In Colorado, for example, nine of the 10 counties with the highest suicide rate over the past 10 years have declared themselves “Second Amendment sanctuaries,” many after the state passed an ERPO law in 2019. Of the 24 Colorado sanctuary counties for which suicide data is available, 22 (or 92 percent) had firearm suicide rates above the state average. Similarly, in Virginia, 36 of the 51 localities that have adopted a resolution to date and for which firearm suicide data is available have rates higher than the state median.

Recent polling in Virginia tells us that citizens of the Commonwealth are in step with the national trends documented above: Roanoke College’s Institute for Public Opinion Research recently released polling results which show that 84 percent of respondents favor universal background checks, and 74 percent support allowing a family member to seek an ERPO from a court. Yet in the very same pool of respondents, 47 percent believe it is more important to protect the right to own guns than to control gun ownership. The only way to make the math add up is to recognize that some people who strongly support Second Amendment rights may also support at least some reasonable gun safety measures—an approach the “sanctuary” advocates would never adopt. But even former Supreme Court Justice Antonin Scalia might have had problems with some of the arguments being advanced by proponents of sanctuaries. “Like most rights,” he wrote in District of Columbia et. al. v. Heller, “the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” In short, rights under the Second Amendment have never been absolute. And under both the national and state Constitutions, our courts are tasked with determining the constitutionality of laws—not local sheriffs.

Home Rule vs. Dillon Rule

Proponents of Second Amendment sanctuaries have another problem in Virginia; the Commonwealth is what we call a “Dillon Rule” state. This means that if a power is not specifically permitted to a locality, state law rules. Progressives have been especially critical of Dillon Rule arguments in years past, believing that they have prevented localities from enacting policies—from local minimum wage ordinances to gun prohibitions—that seek to go further from state law. They have rarely been concerned that more conservative localities, if granted greater “home rule,” might enact policies, such as environmental regulations or building codes, that are more lax than state law. The Second Amendment sanctuary rebellion may prompt some to reexamine their views about how much additional power should be granted to localities.

The Virginia state legislature will soon consider several major gun safety measures, and opponents will likely strongly resist; as one county supervisor has said, “[W]e need to show them a crowd like they have never seen. They need to be afraid and they should be afraid.” Legislators should always be attuned to any unintended consequences of the laws that they pass; that is one reason why we have a deliberative process before bills are passed. But to leave the determination of whether to enforce duly-passed laws totally in the hands of sheriffs and local officials with discretionary power to determine their constitutionality is to turn the rule of law upside down, and is a direct attack on republican government and the Constitution itself.

A modified version of this opinion piece appeared on Slate.com, and portions are further developed in my forthcoming book, In the Room at the Time: Politics, Personalities, and Policies in Virginia and the Nation.